Wednesday, June 27, 2012

Waiting for the Healthcare Decision

Well, the Supreme Court pulled a trick on us. After creating the impression the Monday was
the last day they could issue opinions for this session, they have postponed
their opinion on Obamacare until Thursday.
In the meantime, however, they have left an opinion on the Arizona
immigration law for us to chew on that should keep us quite busy enough until
Thursday.

Combing through the somewhat stilted language of the opinion, what happened was this. Unauthorized presence in the U.S. is illegal,
but not a crime. It is penalized by
deportation, which is a civil, not criminal, proceeding. Knowingly hiring an illegal immigrant is a
crime for the employer, but not the immigrant.
Only the federal government, not the states, has the power to
deport. State and local officials may
report illegal immigrants and turn them over to federal authorities, but not
deport them.

Arizona passed a statute, known as SB 1070 (Senate Bill 1070) that did
four things) that did four things:

(1)It criminalized unauthorized presence in
Arizona;

(2)It criminalized any illegal immigrant holding a
job;

(3)It authorized state and local police to make
arrests on immigration offenses;

(4)It authorized state and local police who made arrests
for non-immigration offenses to check the immigration status of the person
arrested.

The federal government challenged all four provisions as
unconstitutional infringements on the federal government’s exclusive power over
immigration.

Elena Kagan was disqualified from ruling on the matter because she had
argued on it in the lower courts. The
remaining eight justices unanimously upheld the provision that state and local
police could check the immigration status of people arrested for non-immigration
offenses. Justices Kennedy, Roberts,
Sotomayor, Breyer and Ginsburg voted to strike down the other provisions. (Justice Kagan would undoubtedly have joined
them is allowed). Justices Scalia, Alito
and Thomas all dissented (in part) saying they would have upheld at least some
of the other provisions. These were
their rationales.

The majority stressed the importance of exclusive federal control of
immigration because it is so closely related to foreign policy. They emphasized
the importance of giving the federal government wide discretion on decisions
about who to deport. They then explain
that state law may be overridden (preempted) by federal law in three
circumstances: (1) a federal statute
that expressly preempts state law; (2) federal rule so pervasive as to leave no
room for the states (field preemption); (3) state laws that conflict with
federal law, either by directly contradicting it, or by interfering with
it.

The majority then found that a state criminalizing unauthorized
presence it the U.S. fell in the category of field preemption. Only the federal government can regulate the
presence of aliens in the U.S. or penalize violations. Such a framework had been on the books since
at least 1940.

The majority also struck down the provision criminalizing work by
people illegally present in the state.
Its grounds for doing so were that the federal government had explicitly
chosen not to criminalize such employment, but only to subject it to the civil penalties
of denial of legal status and possible deportation. Furthermore, the federal statute expressly
forbids states from imposing any greater penalties on employers. Once again, the
majority appears to find field preemption.

The majority also struck down the provision giving police authority to
make arrests for suspected immigration violations on the grounds that it gave
them broader authority to make such arrests than even federal immigration
officials. It further argued that our
current immigration statute controls when state and local officials may arrest
for immigration offenses. This looks
like a case of (3), state laws that conflict with federal law indirectly, by
interfering with it.

Checking on the immigration status of anyone arrested, by contrast was
allowed. The reason given was that the
method of checking was ask the federal immigration officials, and that such
consultation is expressly authorized
by the federal immigration statute. It
found that nothing in such express authorization was violated by making such
consultation mandatory. It did warn
Arizona not to arrest people for traffic offenses just to check their
immigration status, or to prolong detention too long after an arrest to run the
check. In short, it let this provision
stand, but warned Arizona not to commit serious abuses under it, or it might
hold such abuses to be unconstitutional.

Justices Scalia, Thomas and Alito issued dissents. The dissents are placed in order (I assume)
of seniority. But I will go by order of
intensity.

The mildest dissent was by Alito.
He agreed that Arizona could not criminalize mere presence in the state because
of field preemption. He did believe,
however, that the state could criminalize working in the state and authorize
arrests for immigration violations. Like
the others, he said that the federal immigration statute expressly authorized
states to ask federal authorities for immigration status on people arrested,
and required the federal authorities to answer.
Requiring Arizona authorities to check the immigration status of anyone
arrested must therefore be allowed. He further
said that the federal government’s only argument against this provision was
that it had priorities on deportations, and that the Arizona authorities might
ask for immigration status on someone they did not intend to deport. Mere policy cannot preempt. He would also allow a traffic stop to
escalate into an arrest for an immigration offense, a position not shared by
the majority. He also agreed with the
majority that Arizona cannot criminalize unauthorized presence in the
state. This has been the rule since the
1940’s. By contrast, the Supreme Court
had previously upheld a state statute criminalizing working in the state by
illegal immigrants. The current ruling
was going against a previous precedent which Alito preferred to keep. The fact that Congress expressly preempted
any more severe state penalties on employers
but not employees convinces Alito
that more severe state penalties on employees is allowed. He would also uphold the provision allowing
Arizona police to make arrests for immigration offenses because it does not
authorize arrests merely for unauthorized presence, for committing a deportable
offense (i.e., a crime). He also says
that since state and local police are authorized to cooperate with federal
authorities in making immigration arrests, the state and local police, and not
just the feds, may take the initiative.
Although such authority could be carried out in an unconstitutional
manner, Alito would require some evidence that it is carried out in an unconstitutional manner before forbidding it.

Thomas ‘s dissent is short and simple.
Nothing in the federal immigration statute forbids any of the Arizona
provisions. Therefore they are not
preempted. Scalia's dissent is so extraordinary as to require its own post.

I am left with mixed feelings about this opinion. On the one hand, it is a humane opinion, seeking to prevent states from launching all-out campaigns of harassment and persecution against anyone who looks to Hispanic in order to persuade illegal immigrants to "self deport." On the other hand, it shows a degree of deference to the federal government and presumption that the feds are always right that could be very uncomfortable in some other situation.